United States District Court, D. Nevada
a habeas corpus case under 28 U.S.C. § 2254. In
accordance with the court's order of February 8, 2019,
(ECF No. 8), petitioner has paid the filing fee. Thus, the
habeas petition is before the court for initial review under
Rule 4 of the Rules Governing Section 2254 Cases. The
petition indicates that petitioner's judgment of
conviction was entered on September 8, 2011, and that he did
not file a direct appeal. The petition also indicates that he
did not file his first state post-conviction petition until
to Herbst v. Cook, 260 F.3d 1039 (9th
Cir. 2001), the court sua sponte raises the question
of whether the petition is time-barred for failure to file
the petition within the one-year limitation period in 28
U.S.C. § 2244(d)(1). Under 28 U.S.C. §
2244(d)(1)(A), the federal one-year limitation period, unless
otherwise tolled or subject to delayed accrual, begins
running after "the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such direct review." So, in the
present case, the limitation period began running after the
time expired for taking a direct appeal, i.e., Monday,
October 10, 2011. Absent tolling or delayed accrual, the
limitation period expired one year later on October 10, 2012.
28 U.S.C. § 2244(d)(2), the federal limitation period is
statutorily tolled during the pendency of a properly filed
application for state post-conviction relief or for other
state collateral review. However, if a state court determines
the collateral challenge was not timely filed under state
law, the collateral challenge is not “properly
filed” for purposes of 28 U.S.C. § 2244(d)(2).
Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). In
other words, “[w]hen a postconviction petition is
untimely under state law, ‘that [is] the end of the
matter' for purposes of § 2244(d)(2).”
Id. at 414 (citation omitted). Also, once a state
post-conviction proceeding pursuant a properly filed
application has concluded, the statutory time period resumes
allowing that petitioner's first state post-conviction
petition was properly filed for this purpose, however, it
appears that the federal limitation period expired more than
three years before that petition was filed. Petitioner
therefore must show cause in writing why the petition should
not be dismissed with prejudice as time barred.
regard, petitioner is informed that the one year limitation
period may be equitably tolled. Equitable tolling is
appropriate only if the petitioner can show: (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649
(2010). Equitable tolling is "unavailable in most
cases," Miles v. Prunty, 187 F.3d 1104, 1107
(9th Cir. 1999), and "the threshold necessary
to trigger equitable tolling is very high, lest the
exceptions swallow the rule," Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)
(quoting United States v. Marcello, 212 F.3d 1005,
1010 (7th Cir. 2000)). The petitioner ultimately
has the burden of proof on this “extraordinary
exclusion.” Miranda, 292 F.3d at 1065. He must
demonstrate a causal relationship between the extraordinary
circumstance and the lateness of his filing. E.g.,
Spitsyn v. Moore, 345 F.3d 796, 799 (9th
Cir. 2003). Accord Bryant v. Arizona Attorney
General, 499 F.3d 1056, 1061 (9th Cir. 2007).
addition, under certain circumstances, the one year
limitation period may begin running on a later date or, as
mentioned, may be statutorily tolled. See 28 U.S.C.
§ 2244(d)(1)(B-D) & (d)(2). Barring a preliminary
demonstration by the petitioner that his petition may be
timely under the foregoing principals, this court will
dismiss the petition with prejudice. McNabb v.
Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)
(“[D]ismissal of a first habeas petition for
untimeliness presents a ‘permanent and incurable'
bar to federal review of the underlying claims.”).
has also filed a motion for appointment of counsel and a
motion for stay and abeyance. Pursuant to 18 U.S.C.
§3006A(a)(2)(B), the district court has discretion to
appoint counsel when it determines that the “interests
of justice” require representation. There is no
constitutional right to appointed counsel for a federal
habeas corpus proceeding. Pennsylvania v. Finley,
481 U.S. 551, 555(1987); Bonin v. Vasquez, 999 F.2d
425, 428 (9th Cir. 1993). The decision to appoint
counsel is generally discretionary. Chaney v. Lewis,
801 F.2d 1191, 1196 (9thCir. 1986); Bashor v.
Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).
However, counsel must be appointed if the complexities of the
case are such that denial of counsel would amount to a denial
of due process, and where the petitioner is a person of such
limited education as to be incapable of fairly presenting his
claims. See Chaney, 801 F.2d at 1196; see also
Hawkins v. Bennett, 423 F.2d 948 (8th Cir.
1970). The petition on file in this action is sufficiently
clear in presenting the issues that petitioner wishes to
bring. Also, the issues in this case are not particularly
complex. It does not appear that appointment of counsel is
warranted in this instance. Petitioner's motion for the
appointment of counsel will be denied.
also seeks stay and abeyance pending exhaustion under
Rhines v. Weber, 544 U.S. 269 (2005). However, a
habeas petition must be timely for a Rhines stay to
be warranted. See Rhines, 544 U.S. at 277 (stay is
not warranted “when the unexhausted claims are plainly
meritless”); King v. Ryan, 564 F.3d 1133,
1140-41 (9th Cir. 2009) (discussing need for
dismissed claims to be timely before they may be reasserted
following a stay). Put another way, it would be futile to
grant a stay of a petition that is untimely now and will
still be untimely when any stay might be lifted. As such, the
court will deny petitioner's stay request without
prejudice pending a determination on the timeliness of his
THEREFORE ORDERED that the Clerk shall file the habeas
petition and motion for appointment of counsel currently
docketed as attachments at ECF No. 1. The Clerk shall also
add Aaron D. Ford, Attorney General of the State of Nevada,
as counsel for respondents, and electronically serve a copy
of the petition and this order upon the respondents.
FURTHER ORDERED that, within 30 days of entry of this order,
petitioner shall show cause in writing why the petition
should not be dismissed with prejudice as time
barred. If petitioner does not timely respond to
this order, the petition will be dismissed with prejudice as
time barred without further advance notice. If petitioner
responds but fails to show -- with specific, detailed and
competent evidence -- that the petition is timely, the action
will be dismissed with prejudice.
FURTHER ORDERED that all assertions of fact made by
petitioner in response to this show cause order must be
detailed, must be specific as to time and place, and must be
supported by competent evidence. The court will not consider
any assertions of fact that are not specific as to time and
place, that are not made pursuant to a declaration under
penalty of perjury based upon personal knowledge, and/or that
are not supported by competent evidence filed by petitioner
in the federal record. Petitioner must attach copies of all
materials upon which he bases his argument that the petition
should not be dismissed as untimely. Unsupported assertions
of fact will be disregarded.
FURTHER ORDERED that the respondents' counsel shall enter
a notice of appearance within 20 days of the entry of this
order but need take no further action in the case unless and
until the court so orders.
FURTHER ORDERED that petitioner's motion for appointment
of counsel is DENIED.
FURTHER ORDERED that petitioner's motion for stay and
abeyance (ECF ...